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Special counsel asks US supreme court to rule on Trump’s claim of immunity

<span>Photograph: David Dee Delgado/Pool via AP</span>
Photograph: David Dee Delgado/Pool via AP

Special counsel prosecutors on Monday asked the US supreme court to make an expedited decision on whether Donald Trump can be criminally prosecuted on federal charges over his efforts to overturn the results of the 2020 presidential election.

The move amounts to an attempt by prosecutors to bypass Trump’s recent appeal to the DC circuit after the federal judge overseeing his case rejected the notion that he had immunity for acts he committed during his presidency.

Related: Trump tests federal gag order with attack on Bill Barr: ‘He was a coward’

The petition to the supreme court shows prosecutors were concerned that going through the appeals process – submitting briefs, scheduling oral arguments and waiting for a decision while the case remained frozen – could delay the March 2024 trial date.

Trump has made no secret of the fact that delaying the trial as long as he can remains his overarching legal strategy. If it was postponed until after next year’s presidential election and Trump won, he could direct his attorney general to drop the charges.

“This case presents a fundamental question at the heart of our democracy: whether a former president is absolutely immune from federal prosecution for crimes committed while in office or constitutionally protected from federal prosecution when he has been impeached but not convicted,” the petition said.

The request that the supreme court grant what is known as certiorari before the appeals court issues judgment is unusual. It is typically used in cases of national crises, like when Richard Nixon refused to hand over White House tapes to a special prosecutor.

By citing US v Nixon and asking for expedited treatment in their petition, prosecutors essentially contended to the supreme court that they consider the Trump case of equal magnitude and constitutional consequence.

“The United States recognizes that this is an extraordinary request,” the filing said. “This is an extraordinary case.”

The supreme court has previously ruled that presidents have expansive immunity in civil lawsuits but has never explicitly ruled whether presidents can face criminal charges for crimes they are alleged to have committed while in office.

Whether the court will take up the case remains uncertain, but it has increasingly granted certiorari before an appeals court judgement in recent years, and especially for presidential power cases, according to research by supreme court experts Steve Vladeck and David Merlinsky.

The prosecutors on the filing included the special counsel Jack Smith himself, two of his deputies JP Cooley and James Pearce, as well as veteran supreme court litigator Michael Dreeben, who was also formerly a top appellate litigator for special counsel Robert Mueller in the Russia investigation.

Having the case go to trial in Washington after the election would also mean voters would not know the full extent of the evidence of Trump’s attempts to reverse his 2020 defeat before deciding whether to give him a second term in the White House.

“It is of imperative public importance that respondent’s claims of immunity be resolved by this court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” the petition said. “Only this court can definitively resolve them.”

Last week, the presiding US district judge Tanya Chutkan rejected Trump’s claims that he enjoyed absolute immunity through a sweeping interpretation of executive power, arguing the former president could not be held accountable for actions undertaken in office.

“Defendant’s four-year service as commander in chief did not bestow on him the divine right of kings to evade criminal accountability that governs his fellow citizens,” Chutkan wrote in her 48-page opinion.

Trump swiftly challenged the denial of his motion to dismiss to the US court of appeals for the DC circuit. Notably, the ex-president also asked Chutkan to freeze all aspects of the 2020 election subversion case until the question was resolved.

The motions to dismiss submitted by Trump’s lawyers contended that all of his attempts to reverse his 2020 election defeat in the indictment were in his capacity as president and therefore protected. Those actions ranged from pressuring his vice-president, Mike Pence, to stop the congressional certification to organizing fake slates of electors.

At the heart of the Trump legal team’s filing was the extraordinary contention that Trump both was entitled to absolute presidential immunity and that the immunity applied whether or not Trump intended to engage in the conduct described in the indictment.